United States District Court, N.D. New York
PLAINTIFF: DOUGLAS W. DRAZEN LAW OFFICE, DOUGLAS W. DRAZEN,
REPORT AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE.
an action brought by plaintiff John Solak against a
corporation, Topix, LLC ("Topix"), and a John Doe
defendant whose identity is unknown to plaintiff.
Plaintiff's claims against Topix have been discontinued,
leaving only his claims against defendant Doe. To date,
plaintiff has not moved to substitute an identified
individual as a defendant in place of defendant Doe. In
addition, plaintiff has failed to comply with multiple court
directives requiring that he file a status report in this
matter. Based upon plaintiff's inaction and disregard for
prior court orders, I recommend that his claims against
defendant Doe be dismissed without prejudice.
commenced this action on or about April 1, 2016, in New York
State Supreme Court. Dkt. Nos. 1, 2. Plaintiff's
complaint alleges that defendant Doe published false
statements concerning plaintiff's health to Topix
Binghamton, an internet discussion forum operated by the
former corporate defendant. See generally Dkt. No.
2. Plaintiff claims that the posting caused him to suffer
mental anguish and emotional distress. Id.
commencement of the action, Topix, a limited liability
company incorporated in Delaware and with a principal place
of business in California, removed the action to this court,
asserting diversity of citizenship as a basis for the
court's subject matter jurisdiction. Dkt. No. 1. On May
12, 2016, three days after removal of the action, Topix filed
a motion to dismiss plaintiff's complaint. Dkt. No. 9.
Prior to the determination of the motion, the parties filed a
stipulation dismissing plaintiff's claims against Topix
pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of
Civil Procedure. Dkt. No. 14.
3, 2016, I issued a text order directing plaintiff's
counsel to file a report on or before June 17, 2016, advising
the court concerning the status of plaintiff's efforts to
identify defendant Doe and add him or her as a named party.
Dkt. No. 17. In response, plaintiff's counsel timely
filed a letter indicating that a subpoena would be served on
Topix for information that may assist in identifying
defendant Doe. Dkt. No. 18.
receipt of plaintiff's status report, I issued a second
text order, dated June 17, 2016, requiring plaintiff to file
a further report with the court concerning his efforts to
identify defendant Doe on or before July 18, 2016. Dkt. No.
19. In compliance with that order, plaintiff filed a status
report on July 18, 2016, advising that he served the
subpoenas referenced in his earlier status report, and that
he anticipated he would be receiving information that would
allow for the identification of defendant Doe. Dkt. No. 20.
19, 2016, plaintiff was directed by the court to file a
further status report on or before September 19, 2016. Dkt.
No. 21. After plaintiff failed to comply with that order, I
issued another text order dated October 13, 2016, again
requiring a status report to be filed by October 14, 2016.
Dkt. No. 22. On October 31, 2016, more than two weeks after
the court's deadline, plaintiff filed a status report
informing the court that the information he had received as a
result of the subpoenas was not particularly fruitful with
respect to defendant Doe's identity. Dkt. No. 23. As a
result, counsel for plaintiff noted that he was
"awaiting [his] client's decision whether to move
forward" in the action. Id.
November 1, 2016, I issued a text order directing
plaintiff's counsel "to file a further status report
concerning the matter on or before November 30, 2016."
Dkt. No. 24. On the date of the deadline, plaintiff's
counsel informed the court by letter that "[t]here has
been no change in status since the October 31, 2016
report." Dkt. No. 25.
December 8, 2016, the court issued an order informing
plaintiff that, "[i]n the event [he] wishes to pursue
the remaining claims in this action, he shall take steps to
identify and join the Doe defendant in the action on or
before January 31, 2017." Dkt. No. 26 at 4. To date, the
court has not received any correspondence from plaintiff or
his counsel regarding the status of the action or
plaintiff's efforts to identify defendant Doe, nor has
the plaintiff filed a motion to substitute an identified
individual for defendant Doe.
41(b) of the Federal Rules of Civil Procedure provides that a
court may, in its discretion, order dismissal of an action
based on a plaintiff's failure to prosecute or comply
with an order of the court. Fed.R.Civ.P. 41(b); Baptiste
v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014);
Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443,
at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting
report and recommendation by Lowe, M.J.). That
discretion should be exercised when necessary to
"achieve the orderly and expeditious disposition of
cases." Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962); see also Baptiste, 768 F.3d at 216-17
(reiterating that ...